### IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 19

OCTOBER TERM, A.D. 2020

February 1, 2021

ASPHALT SPECIALTIES CO., INC., a Colorado corporation,

Appellant (Petitioner),

v.

LARAMIE COUNTY PLANNING COMMISSION,

Appellee (Respondent). S

- 20

- 0127

Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

Representing Appellant: Harriet M. Hageman of New Civil Liberties Alliance, Washington, DC.

Representing Appellee:

Mark T. Voss and Justin E. Dolan of Laramie County Attorney’s Office, Cheyenne, Wyoming. Argument by Mr. Voss.

Before DAVIS, C.J., and KAUTZ, BOOMGAARDEN, GRAY, JJ and KORELL, DJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.1 BOOMGAARDEN, Justice.

[¶1] Asphalt Specialties Co.

, Inc. (A SCI ) appeals the Laramie Count y Planning

Commi s sion’s ( t he Commission ’s ) decision denying ASCI’s 2018 site plan application for

a hard rock quarry operation in Laramie County. ASCI argues th e Commission’s decision was unlawful and must be set aside under Wyo. Stat. Ann. § 16

- 3

- 11 4 (c)(ii). We agree

and reverse.

ISSUE

[¶2] A SCI presents five issues in accordance with each subpart of Wyo. Stat. Ann. § 16

- 3

- 114(c)(ii)

, which governs judicial review of agency actions

. The issue ASCI presents
first is dispositive

. W e restate it as :

Was t he Commission ’s decision to deny ASCI’s application in

excess of statutory jurisdiction, authority or limitations or lacking statutory right ?

FACTS

[¶3] ASCI, a Colorado c o rporation

, ha s 555 acre s of land in southwestern Laramie County called the “Lone Tree Creek” property

. ASCI wants to develop a 15

- acre “ hard

rock quarry ” 1 (the project) on the property

, which is unzoned and assessed as residential

vacant land.

[¶4] In May 2018, ASCI filed a site plan application with the Commission in accordance with Laramie County Land Use Regulation (LCLUR) § 2

- 2

- 133. According to LCLUR § 2

- 2

- 133 (d)(i)

, “[a] site plan is required for all new commercial, industrial, public, and

multi

- family residential land uses.” The purpose of this requirement is to :

[P] rotect the health, safety and welfare of Laramie County residents through appropriate design of comm ercial

. . . developments. Laramie County recognizes that flexibility and the use of best practices in site design will support the community vision described in the Laramie County Comprehensive Plan by preserving environmental quality and promoting econo mic vitality.

1 ASCI seeks to develop this project as a limited mining operation under Wyo. Stat. Ann. § 35

- 11

- 401(e)(vi). L ike the parties, we characterize the project as a hard rock quarry or gravel mining operation, interchangeably.2 LCLUR § 2

- 2

- 133(a). A pplication s must be submitted on a form provided by the Planning and Development Office and must depict a total of 26 specification and design related

elements listed in LCLUR § 2

- 2

- 133( d)(vi)(A)

– (Z).

[¶5] Due to vocalized community concerns , 2 the Commission h e ld a public hearing ab out the project under LCLUR § 2

- 2

- 133 (d) (iv) , which provide s that “[s] ite plans in the regulatory area 3 of the C ounty may require public hearing before the Planning Commission if the Planning and Development Director determines that the impacts of the proposed use will significantly impact surrounding properties.” LCLUR § 2

- 2

- 133(d)(iv) (since

amended to require public hearing before the B oard of C ounty C ommissioners )

. At this

mid

- July hearing, t he public again expressed concerns and resistance. 4 The Commission

voted 4

- 0 to postpone making its decision in order to further consider the information provided at the hearing.

[¶6] I n Oc tober 2018 , the Commission held another hearing to deliberat e and decide on ASCI’s site plan. Without hearing any further public comment, the Com m ission denied the application by a 2

- 2 vote

. I n a written decisio n t he Commission denied ASCI’s proposed project altogether, conclud ing:

T he applicant’s proposed use does not fulfill the purpose of the site plan regulation. It does not adequately protect the health, safety and welfare of Laramie County Residents. It also fails to support the comm unity vision described in the Laramie County c omprehensive plan and it does not effectively balance economic development with other equally important needs in the community.

[¶7] In November 2018, ASCI pe titioned the district court for review of the

Commission’s decision. The district court affirmed , and ASCI appeal ed

.

2 About 45 people attended an informal publ ic meeting in March 2018 and overwhelmingly resisted the project. After that hearing, n eighboring landowners organized and submitted a petition to stop the project

with “50

- 60 signatures from people who ‘ live or ranch in the immediate area, are familiar with and visit the area, or frequently travel [in the area]. ’ ”

3 The regulatory area is defined as “[a]ll lands in unincorporated Laramie County.” LCLUR § 1

- 3

- 101 (2019)

. 4 M ajor areas of concern included increased traffic, and road use and det erioration; concerns about airborne dust, wind patterns

, and potential health hazards; the effects of the project on the area’s water resources;

“ view shed ” concerns; and financial effects.3 STANDARD OF REVIEW

[¶8] Our r eview is governed by the Wyoming Administrative Procedure Act

. HB Family Ltd. P’ship v. Teton Cty. Bd. of Cty. Comm’rs , 2020 WY 98, ¶ 21, 468 P.3d 1081, 10 88 (Wyo. 2020)

. We must affirm the Commission’s decision unless it was:

(A) A rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) C ontrary to constitutional right, power, privilege or immunity;

(C) I n excess of statutory jurisdiction, authority o r limitations or lacking statutory right;

(D) W ithout observance of procedure required by law; or

(E) U nsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16

- 3

- 114(c)(ii) (LexisNexis 2019)

. We review the decision as though it came directly from t he agency ; we give no deference to the d istrict c ourt’s decision.

Po wder River Basin Res

. Council v. Wyoming Dep ’ t of Envtl

. Quality

, 2020 WY 127, ¶ 9, 473 P.3d 294, 297 (Wyo. 2020) (citation omitted). Finally, we review any conclusions of

law de novo. HB Family Ltd

. P ’ ship , ¶ 33, 468 P.3d at 1091 (citation omitted).

DISCUSSION

[¶9] ASCI argues the Commission’s denial of the project “ under the auspices of a S ite

P lan review ” was unlawful under every subpart of Wyo. Stat. Ann. § 16

- 3

- 114(c)(ii)

. Our analysis of whether the de nial exceeded the Commission’s statutory authority alone

warrants reversal.

[¶10] “As an arm of the state, the county has only those powers expressly granted by the constitution or statutory law or reasonably implied from powers granted.” 5 Bd

. of Trustees of Laramie Cty

. v. Bd

. of Cty

. Comm ’ rs of Laramie Cty

. , 2020 WY 41, ¶ 12, 460 P.3d 251

, 257 (Wyo. 2020) ( quoting Ford v. Bd

. of Cty

. Comm ’ rs of Converse Cty

. , 924 P.2d 91 , 95 ( Wyo. 1996)). N o one dispute s that Laramie County has statutory authority to regulate the

use of lands. Ford , 924 P.2d at 95. T he question we must answer is more exact : I f Laramie County has not exercised its statutory authority to zone the Lone Tree Creek property, can

5 T he Commission provides no cogent argument or analysis to support a conclusion that it has authority to deny ASCI’s proposed project based on implied powers.4 it nevertheless deny or restrict ASCI’s proposed land use ? To answer this question, w e first address the scope of the C ounty’s zoning authority and whether it exercised such authority. We then analyze the distinction between zoning and planning, and the legal significance of the C ounty’s regulatory control under a comprehensive land use plan and LCLURs concerning site plan review and approval.

[¶11] Wyo. Stat. Ann. § 18

- 5

- 201 (a) (LexisNexis 2019) expressly permits a county to “regulate and restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for .

. . industry, commerce, public use and other purposes in the unincorporated area of the county

. ” T he restrict ion of a particular land use is accomplished through zoning, and extends to restricting use for the development of sand, gravel, and rock

. River Springs Ltd. Liab

. Co. v. Bd

. of Cty

. Com’rs of Cty

. of Teton

, 899 P.2d 1329, 133 3

– 3 4

, 1336

– 37 (Wyo. 1995) ( holding that sand, gravel , rock, and limestone

are not “ mineral resources ” excluded from zoning restriction under Wyo. Stat. Ann. § 18

- 5

- 201 ). 6

[¶12] It is undisputed that Laramie County has not zoned ASCI’s property and has no land use regulations governing quarries or mining operations. However, t he C ounty does have a comprehensive land use plan and LCLURs that require submission, review and approval of site use plans in regulatory are as, including the Lone Tree Creek p roperty. I t is these

land planning measures that the C o mmission interprets as providing sufficient legal authority to deny ASCI’s proposed project altogether, reasoning: “[t]he use proposed by [ASCI] in this matter is no t consistent with the Laramie County comprehensive plan[,]” and “[ASCI] has failed to demonstrate that the proposed quarry would protect the health [

, ] safety [

, ] and welfare of the citizens of Laramie County [

. ] ” The Com m ission further argues that the site plan LCLUR s “provide enough ‘ flexibility ’ to deny an application[.]” The question at this point , then, is whether the C o mmission impermissibly expanded the County’s statutory authority to prohibit use of the Lone Tree Creek property as a hard rock

quarry . Applying long

- recognized statutory and legal distinctions between planning and zoning , we conclude it has.

[¶13] The legislature ha s mandated that each county adopt a countywide , or comprehensiv e, land use plan, statutorily defined as “ any written statement of land use policies, goals and objectives adopted by local governments.” Wyo. Stat. Ann. § 9

- 8

- 301 (c), (d)(i) (LexisNexis 2019) . “ S uch plans shall relate to an explanation of the methods for implementation, however, these plans shall not require any provisions for zoning.” Wyo. Stat. Ann. § 9

- 8

- 301 (d)(i). Thus, w e have recognized that “[a] comprehensive plan is generally a prerequisite for the adoption of zoning resolutions.” Ford

, 924 P.2d at 95.

6 River Springs goes on to explain that if a county has not prohibited gravel mining then the Department of Environmental Quality regulat ions govern the conduct of such mining. Id. at 1335

– 36. ASCI goes to great length to argue this point and explain that any residual regulatory authority Laramie County may have over and above that of the Department of Environmental Quality is limited. G iven the narrow grounds for reversal set forth above, we need not address ASCI’s arguments.5 Such is the case with the Laramie County comprehensive plan , which

, as the parties agree,

is “ advisory in nature

. ” Laramie County Comprehensive Plan, § 1.2 , p. 7 (June 2016).

[¶14] Z oning , on the other hand, is statutorily defined as “a form of regulatory control granted to local governments which may be used to guide and develop specific allowable land use.” Wyo. Stat. Ann. § 9

- 8

- 301 (d)(ii ). In other words, “[z]oning is the process that a community employs to legally control the use which may be made of property and the physical configuration of development upon the tracts of land located within its jurisdiction.” Ford

, 924 P.2d at 94 (citing 1 Patrick J. Rohan, Zoni ng and Land Use

Controls § 1.02[1] (1991)). Z oning res olution s must be adopted by the B oard of C ounty
C ommissioners in accordance with a statutorily prescribed process for considering the

P lanning and Z oning C ommission’s recommendations

. W yo. Stat. Ann. § 18

- 5

- 202(c) ( LexisNexis 2019) ; see also Crouthamel v. Bd

. of Albany Cty

. Comm ’ rs , 951 P.2d 835,

837

– 38 (Wyo. 1998 ). “ It is the proper zoning enactment which h as the force and effect of

law.” Ford

, 924 P.2d at 95 (citing 1 E.C. Yokley, Zoning Law and Practice § 5

- 3 at 225 (4th ed. 1978) ). Comprehensive plans “lack the legal effect of zoning laws and cannot be equated with comprehensive zoning in legal significance.” Crouthamel , 951 P.2d at 838 (citing Ford

, 924 P.2d at 95).

[¶15] The LCLUR s governing the submission, review and approval of a site plan application

, LCLUR §§ 2

- 2

- 133 and 2

- 2

- 135, are tool s the C o mmission may use to ensure the goals set forth in the C ounty’s compre hensive plan are met

. But these regulation s are separate and distinct from the zoning regulations found in Title 4 of the LCLURs

. And the legal significance of regulations like LCLUR §§ 2

- 2

- 133 and 2

- 2

- 135 differ s from the legal significance of properly adopted zoning regulations

. See id at 8 3 6 , 838

– 39 ( finding that

where Albany Co unty did not employ a traditional, zoned , land use system, it could not grant or deny a permit re stric ting the use of that prop erty)

. Only after a county ha s adopted zoning resolutions can it restrict a landowner from using land wi th out obtaining a zoning

certificate. Id. at 840 (citing Ford

, 924 P.2d at 95).

[¶1 6 ] The Commission argu es th at these statutory distinctions do not apply because the

LCLUR s “provide enough ‘ flexibility ’ to deny an application [

. ] ” T he Commission claims it can deny a proposed use that has “deleterious effects on the broader community” because

, “[o]n the ‘ flexibility ’ side, the LCLUR [s] inform [] each applicant that satisfying the ‘ best practices ’ requirements does not guarantee approval

. ” “ Together, ‘ best practices ’ and

‘ flexibility ’ advance ‘ the community vision described in the Laramie County Comprehensive Plan by preserving environmental quality and promoting economic vitality. ’ ”

[¶1 7 ] We recognize the Commission was in a difficult pos ition given the public’s vocal disapproval of ASCI’s proposed quarry . However, it is undisputed the C ounty has not

zone d the Lone Tree Creek p roperty to restrict quarry operations

. Should the B oard of

C ounty C ommissioners pursue zoning , a ll c ounty citizens and landowners can then be6 heard pursuant to Wyo. Stat. Ann. § 18

- 5

- 202(c). 7 Absent zoning , t h e Commission cannot substitute public disapprov al for legal authority to deny ASCI its proposed project

. 8 Nor

may the Commission give the C ounty’s comprehensive plan and LCLUR § 2

- 2

- 133 legal

effect they do not have

. The legislature has distinguished and limit ed the legal effect of

county planning documents and regulations like the LCLURs

. T he y can be used to set
forth land use policies, goals

, and objectives, and help to implement th ose policies, goals

, and objectives , but they can not be used to restrict a proposed use

. C ompare Wyo. Stat. Ann. § 9

- 8

- 301(d)( i )

, with § 9

- 8

- 301(d) (ii). Use restrict ion can only be accomplished through zoning. See Ford

, 924 P.2d 91 ; Crouthamel

, 951 P.2d 835. T he Commission

cannot read the broad public health and safety , environmental quality , and economic vitality objectives reflected in its comprehensive plan or site plan LCLUR s to afford itself any more authority than that which it is given by statute

. Bd

. of Trustees of Laramie Cty

. , ¶ 12, 460 P.3d at 2 5 7.

CONCLUSION

[¶ 1 8 ] C ounties may only restrict a land use pursuant to zoning

. ASCI’s Lone Tree Creek property is not zoned. T he Commission therefore exceeded its statutory authority when it

utilized it s comprehensive land use plan and the site plan review process to outright den y ASCI use of its land for a limited gravel mining operation

. W e reverse and set aside the

Commission’s decision under Wyo. Stat. Ann. § 16

- 3

- 11 4 (c)(ii) (C)

.

7 Wyo. Stat. Ann. § 18

- 5

- 202(c) mandates that, “[b] efore adopting the recommendations the board shall hold at least one (1) public hearing. Notice of the time and place of hearing shall be given by one (1) publication in a newspaper of general circulation in the county at least fourteen (14) days before the date of the hearing. ”

8 This opinion takes nothing away from the Commission’s authority to issue or deny Certificates of Review and Compliance pursuant to LCLUR § 2

- 2

- 135. Planning Director Emmons acknowledged “[t]he Land Use Regulations have no specific regulations to quarry us es[,]” and stated that “[a]ll site required documents were provided[,]” and that the “[s]ite meets the requirements of [§] 2

- 2

- 133(d).” However, following the public hearings the Commission did not address this compliance issue in its written decision. A s ASCI points out, the Commission’s order never addresses “whether ASCI’s Site Plan Application complies with the specific elements of [§] 2

- 2

- 133 of the [LCLURs].” Accordingly, any determination whether ASCI has complied with LCLUR § 2

- 2

- 133(d) is beyond the scope of this appeal.